Splits And Seasons: The First Year Of ‘No-Fault’ Divorce
Published on 30 June, 2023 | Claire Reid
Marriages, it could be said, are measured in years spent together, filled with families and shared experiences – some good, some not so.
As a family lawyer, however, I would venture that divorce, on the other hand, can be traced in seasons.
That is because it is possible to discern fairly distinct patterns in when and how individuals choose to exit failing or failed marriages.
For instance, whilst divorce proceedings are initiated throughout the year, most are actually begun during the first six months – perhaps the consequence of any stresses which summer holidays, the start of the new school year and the Christmas period may add to relationships which might already be in trouble.
In addition, a husband or wife’s unreasonable behaviour had been the most common reason cited for the collapse of marriages over several decades, accounting for 43 per cent of opposite-sex and same-sex divorces during 2021 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021).
There was intense speculation that both of those things would change, though, with the implementation in April last year of the most significant reform of divorce law in 50 years.
Of all the elements of the Divorce, Dissolution and Separation Act 2020, one stood out; namely, the removal of the need for one spouse to blame the other for the breakdown of their partnership (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted).
The Act also gave couples who might apply for divorce in haste a chance to reconsider at relative leisure thanks to a 20-week ‘cooling-off period’ before being eligible for a Conditional Order – the first of two documents signalling the formal end to a marriage.
The changes were designed to remove some of the friction which might be generated by having to attribute the demise of what could have been a long relationship to an individual’s poor conduct.
Cynics argued that the legal change might tempt more spouses to divorce after running into the kind of ups and downs which are part and parcel of many marriages rather than trying to work through their problems.
We now have something of an answer, thanks to the publication of figures by the Ministry of Justice (MoJ) spanning the first 12 months for which ‘no-fault’ divorce has been in force (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2023/family-court-statistics-quarterly-january-to-march-2023).
What it reveals is intriguing but it is anything but definitive.
There has indeed been an increase in divorce. Just shy of 116,000 applications were submitted before the end of March this year – an increase of 10.7 per cent on the final year of the old regime.
Yet we will have to wait longer than a single year to divine whether that rise indicates a fundamental and lasting shift.
What we can certainly see is a continuation of the seasonal patterns of divorce. The largest volume of applications took place between January and June – at either end of the financial year covered by the MoJ data.
Of course, we should also remember that obtaining the Conditional and Final orders – dealing with the administration of divorce, if you will – is just one part of the divorce process.
Over the course of my career, it has become apparent that most of the disputes between separating spouses arise when it comes to dividing their joint matrimonial assets.
That much was recognised by Government when it came to making ‘no-fault’ divorce law. It was to be, said ministers, the first of a two-part approach.
The remaining element was to be an assessment of whether legislation governing financial settlements was still fit for purpose or needed reform too.
In March, the Parliamentary Under Secretary of State in the Ministry of Justice, Lord Bellamy, told his fellow peers that work would commence in due course (https://hansard.parliament.uk/lords/2023-03-08/debates/3AB3D708-24E5-4FF2-8481-05EFA27E2593/DivorceFinancialProvision).
Just weeks later, the Law Commission announced the scope of its project and determined to deliver recommendations by September next year (https://www.lawcom.gov.uk/project/financial-remedies-on-divorce/).
It is to be hoped that what emerges will address one unintended consequence of ‘no-fault’ divorce.
Even those individuals who are ending their marriage amicably seem to regard the cooling-off period as complicating rather than simplifying matters.
Once they have decided to divorce, they simply want to get on with things.
Having to wait 20 weeks, therefore, can create practical difficulties when it comes to dividing assets such as the family home and that can actually increase rather than avoid tensions.